THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. PIUS GBENEYEI & ORS
(2019)LCN/13170(CA)
In The Courtroom of Attraction of Nigeria
On Thursday, the 2nd day of Could, 2019
CA/B/340/2014
RATIO
ORIGINATING PROCESSES: WRIT OF SUMMONS: WHETHER WRIT OF SUMMONS CAN BE ISSUED BY A LEGAL PRACTITIONER
The writ of summons was signed by the decide (see web page 12 of the File of Attraction, and was to not be issued by a authorized practitioner see FADA V NAOMI (2002) 2 NWLR (PT 75..7) 318, FAMFA OIL LTD VS AGF (2003) 18 NWLR (PT 852) 453.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
ORIGINATING PROCESSES: WRIT OF SUMMONS: WHO IS TO PREPARE THE WRIT AND WHO IS SUPPOSED TO ISSUE IT
What’s being contended is that the writ of summons itself was not signed by authorized practitioner.
There’s a distinction between the writ of summons and the appliance. The Rule of Courtroom is evident. The appliance for writ of summons beneath the 2000 Guidelines of Federal Excessive Courtroom was to be originated by a authorized practitioner or the plaintiff. However the writ was to be ready signed and issued by the Registrar. See Order 6 Rule 1 of the Federal Excessive Courtroom Guidelines 2000.
ORIGINATING PROCESSES : WRIT OF SUMMONS: EFFECT OF A LEGAL PRACTITIONER NOT SIGNING THE WRIT
The failure of the plaintiffs authorized practitioner to signal the writ of summons on the decrease Courtroom is of no impact. It doesn’t vitiate the proceedings. I resolve this situation in favour of the Respondent within the circumstance.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
REPRESENTATIVE ACTION: WHAT IS THE ESSENCE OF A REPRESENTATIVE ACTION
The Rule on consultant motion it must be famous, is a rule of comfort and shouldn’t be rigidly utilized. See SAPO & ANOR V SUNMONU (2010) 11NWLR PT. 1205 p. 374 In line with Sanusi JSC in DURBAR HOTEL PLC V ITYOUGH & ORS (2016) LPELR -42560 (S.C.)
The essence of a consultant motion is especially to curtail multiplicity or inflow of fits on the identical curiosity or matter. Such consultant motion is competent as soon as the particular person being represented and the individuals representing them have widespread or identical curiosity in the identical motion. See ADELEKE V ANIKE (2006) 16 NWLR (PT 1004) 162; NWANGUMA V IKYAANDE (1992) eight NWLR (PT. 285) AT 192.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
REPRESENTATIVE ACTION: NATURE OF THE RULES GOVERNING REPRESENTATIVE ACTIONS
Suffice it to say and it is usually trite legislation that the foundations governing consultant motion is a rule of comfort and should be handled with some air of flexibility and liberality and never with rigidity. See EJEZIE V NWABUEZE (2008) 4SCNJ 113; ANATOGU V AG OF EAST CENTRAL STATE (1976) 11SC 109 or (1970) 11SC (Reprinted) 59.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
EVIDENCE: WHEN A PIECE OF EVIDENCE CONTRADICTS ANOTHER ONE
Once more see ONWUNALU VS. UCHE (2010) 2NWLR (PT 1179) 582 @ 611. In JERRY IKUEPENIKAN VS. THE STATE (2010) 1NWLR (PT. 1229) 449 @ 454 the Courtroom held that:
A bit of proof contradicts one other when it affirms the alternative what the opposite proof state. In impact, two items of proof contradict each other when they’re themselves inconsistent.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
EVIDENCE: WHEN IS EXPERT EVIDENCE NECESSARY
When is the proof of an knowledgeable vital
GALINJE JSC, defined thus in EROMOSELE V FRN (2018) LPELR-43851 (S.C).
Skilled opinion is barely vital the place an knowledgeable can furnish the Courtroom with scientific or different data of a technical nature that’s prone to be exterior the expertise and data of the Decide.
See additionally KAYDEE VENTURES LTD V THE HON. MINISTER FCT & ORS (2010) 7NWLR (PT 1192) p.171.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
EVIDENCE: THE EFFECT OF CONFLICTING EXPERT EVIDENCE OR OPINIONS
Skilled proof is given to help the Courtroom however the place there are conflicting knowledgeable opinions as on this case, the Courtroom is free to judge and pick of the opinions. See SPDC V FARAH (1995) Three NWLR (PT 382)148.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
WHEN THE FINDINGS OF A TRIAL JUDGE ARE TO BE INTERFERED WITH
Findings of details of a trial decide are to not be calmly disturbed besides when they’re perverse. See ANYANWU V MBARA & ANOR (1992) 5 NWLR PT. 242 p.386; ANEKWE V STATE (2014) LPELR ? 22881, (S.C). The plaintiff supplied experiential proof consistent with the legislation. Experience may be acquired by means of expertise. See OMISORE & ANOR V AREGBESOLA & ORS (2015) LPELR-24803 S.C.; RABIU V AMADU (2013) 2 NWLR PT. 1337 p.36.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
RES IPSA LOQUITOR: WHETHER IT NEEDS TO BE PLEADED
See THOMPSON & ANOR V ADEFOPE (1969) 1ALL NLR 314; IBEKENDU V IKE (1993) 6NWLR PT 299 p. 287; CHUDI VERDICAL CO. LTD V IFESSINACHI INDUSTRIES (NIG) LTD & ANOR (2018) LPELR-44701(S.C).
Res ipsa loquitur doesn’t have to be pleaded. In my respectful view, the decrease Courtroom on the admitted details was proper to have utilized the doctrine of res ipsa loquitur.PER TUNDE OYEBANJI AWOTOYE, J.C.A.
COURTS: WHETHER THE COURTS CAN GRANT RELIEFS NOT CLAIMED BY PARTIES
A Courtroom can’t like father Christmas grant what a celebration has not claimed, see DYKTRADE LTD V OMNIA (NIG) LTD (2000) 12 NWLR PT. 680 p.1; EDILCON (NIG) LTD V UBA PLC (2017) LPELR 42342 (SC).PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Courtroom of Attraction of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Courtroom of Attraction of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Courtroom of Attraction of Nigeria
Between
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD Appellant(s)
AND
1. PIUS GBENEYEI
2. BENSON A BARDA
3. CHIEF FRANCIS GOLD
4. CHIEF BEN I. EKIOKANGAN
5. REUBEN BRABOKO
(for themselves and on behalf of Okia Group in Burutu Native Authorities) Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Main Judgment): That is the judgment in respect of the attraction in opposition to the choice of Federal Excessive Courtroom Asaba delivered on 4/12/2013.
The declare of the Plaintiffs on the decrease Courtroom is as per paragraph 21 of their assertion of declare which learn as follows:
WHEREFORE: the plaintiffs claims in opposition to the Defendants the whole sum of N305,637,381.60 (300 and 5 million, 600 and thirty seven thousand, 300 and eighty one naira, sixty kobo) solely being SPECIAL and GENERAL damages brought on by the Defendants crude oil spillage to the plaintiffs property.
PARTICULARS OF SPECIAL DAMAGES
The particulars of particular damages impacted on the plaintiff by the Defendants oil spillage are as follows:
1. Capital worth for non permanent lack of revenue in fishing rights to the grownup fishing inhabitants of about 400 people—————– N232,837.000.00
2. Open market worth of fishing nets for people, fishing nets are graded and categorized as 2 or Three ply for creek fishing operation (the minimal size of 50 metre sand and most of 100
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meters)-6 inch 50 ply N50,000.00 to N105,000.00………..N9,019,068.00
3.Allowance for contemporary water provide ..N4,500,000.00
4.Consultancy charge for counsel and property surveyor and valuerN49,271,213.60
GENERAL DAMAGES
The sum of N10,000,000 (Ten million naira) as damages.
AND every other reduction(s) as this Honourable Courtroom might deem match and correct to grant within the circumstances.
Events filed and exchanged pleadings. After listening to the events, the discovered trial decide entered judgment in favour of the plaintiffs as follows:
This Courtroom agrees with the Plaintiff Counsel submission that the quantity sought from this Courtroom is honest when it comes to particular damages which had been proved and the quantity claimed as common damages will not be exaggerated. Accordingly this Courtroom upholds the case of the Plaintiff and its submission in opposition to that of the Defendant that’s frugal on the legislation, details and proof earlier than the Courtroom. Accordingly, judgment be and is hereby entered for the plaintiff within the sum of N305,637,381.60 solely being particular and common
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damages brought on by the Defendant?s crude oil spillage to the Plaintiffs property aforesaid.
PARTICULARS OF SPECIAL DAMAGES:
Capital worth for non permanent lack of revenue in fishing rights to the grownup fishing inhabitants of about 400 individuals N232,837,000.00
Open market worth of fishing nets for people, fishing nets are graded and categorized as 2 or Three ply for creek fishing operation (the minimal size of 50 metre sand and most of 100 metres) -6 inch 50ply N50,000.00 to N105,000.00 .N9,019,068.00
Allowance for contemporary water provide. N4,500,000.00
That is my judgment.
Dissatisfied with the above judgment, the appellant filed discover of Attraction containing Three grounds of attraction and later by depart of Courtroom an amended discover of Attraction containing 17 grounds of attraction.
GROUNDS OF APPEAL
The grounds of attraction of the appellant are as per his amended Discover of Attraction deemed filed on 21/10/15.
?GROUNDS OF APPEAL
1. The discovered trial decide erred in legislation in upholding the plaintiffs? case in opposition to that of the defendant.
PARTICULARS OF ERROR
a) The allegation of negligence. Pleaded by
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the plaintiff was not proved.
b) Plaintiffs didn’t plead and show particulars of the alleged negligence.
c) Negligence on the a part of appellant was disproved.
d) Plaintiffs didn’t show their case on the steadiness of chances.
2. The discovered trial decide erred in legislation in counting on the doctrine of res ipsa loquitur and basing his judgment on the doctrine.
PARTICULARS OF ERROR
a) Plaintiffs didn’t plead the doctrine of res ipsa loquitur.
b) The doctrine of res ipsa loquitur will not be relevant within the circumstance of this case.
3. The discovered trial decide erred in legislation in counting on exhibit P17 in awarding the sum of N305,637,381.60okay (300 and 5 million, 600 and thirty-seven thousand, 300 and eighty-one Naira, sixty kobo).
PARTICULARS OF ERROR
a) Exhibit P17 is unreliable and carries no probative worth.
b) Plaintiffs led not scientific proof to show the alleged injury and destruction of their farm land and waters.
4. The judgment is in opposition to the burden of proof.
5. The discovered trial decide erred in legislation in entertaining and adjudicating
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over the go well with when the writ of summons initiating the go well with didn’t invoke the jurisdiction of the honourable Courtroom.
a) The writ of summons initiating the go well with was not signed by a authorized practitioner as required by legislation and is due to this fact incurably unhealthy and is null and void.
b) The unsigned writ of summons filed on this go well with is incapable of igniting the Courtroom?s jurisdiction.
c) The go well with was not commenced by due strategy of legislation.
6. The discovered trial decide erred in legislation in entertaining go well with and adjudicating on the plaintiffs? case as a consultant motion and awarding a lump sum as damages when:
a) The proof earlier than him is that the properties allegedly broken had been owned individually and never by Okia neighborhood which plaintiffs purport to symbolize.
b) The go well with was not correctly constituted as a consultant motion.
c) No proof was supplied as to which particular person within the plaintiffs? neighborhood owned what, and the worth of every merchandise of property owned.
d) The named plaintiffs didn’t have the identical curiosity because the Okia neighborhood within the property allegedly affected by the oil spill.
e) There was no widespread
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grievance within the plaintiffs and people they purport to symbolize.
f) The reduction claimed is not going to be helpful to the Okia neighborhood however particular person homeowners of property.
7. The discovered trial decide erred in legislation in holding the defendant liable in negligence when:
PARTICULARS OF ERROR
a) Plaintiffs neither pleaded, nor proved negligence.
b) No particulars of any alleged negligence was plead
